IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

NO. 09-10420

CATHRYN ELAINE HARRIS, on behalf of herself and all others similarly situated; MARIO HERRERA, on behalf of himself and all

others similarly situated; AND MARYAM HOSSEINY, on behalf of herself and all others similarly situated,

Plaintiffs-Appellees,

vs.

BLOCKBUSTER INC.,

Defendant-Appellant.

AMICUS CURIAE BRIEF OF ELECTRONIC PRIVACY INFORMATION CENTER (EPIC) IN SUPPORT OF PLAINTIFFS-APPELLEES AND URGING

AFFIRMANCE

On Appeal from the United States District Court for the Northern District of Texas, Dallas Division

No. 3:09-cv-217-M, Hon. Barbara M.G. Lynn, Judge Presiding

MARC ROTENBERG Counsel of Record JOHN VERDI JARED KAPROVE GINGER MCCALL KIMBERLY NGUYEN* MATTHEW PHILLIPS Electronic Privacy Information Center 1718 Connecticut Ave., NW Suite 200 Washington, DC 20009 (202) 483-1140

CERTIFICATE OF INTERESTED PERSONS

Pursuant to 5th Cir. R. 28.2.1 & 29.2, the cause number and style number

are as follows: Cathryn Harris, on behalf of herself and all others similarly

situated; Mario Herrera, on behalf of himself and all others similarly situated;

and Maryam Hosseiny, on behalf of herself and all others similarly situated v.

Blockbuster Inc., No. 09-10420 in the United States Court of Appeals for the Fifth

Circuit. Amicus Curiae, Electronic Privacy Information Center (“EPIC”), is a

District of Columbia corporation with no parent corporation. No publicly held

company owns 10% or more of the stock of EPIC. EPIC does not have a financial

interest in the outcome of this case. The undersigned counsel of record certifies that

the following listed persons and entities as described in the fourth sentence of Rule

28.2.1 have an interest in the outcome of this case. These representations are made

in order that the Judges of this Court may evaluate possible disqualification or

recusal.

• Appellant Blockbuster Inc. is a Delaware corporation headquartered in Dallas, Texas. Blockbuster Inc. does not have a parent corporation, and no publicly-held corporation owns 10% or more of its own stock.

• The following attorneys have appeared on behalf of Appellant either before this Court or in the district court: Thomas S. Leatherbury Michael L. Raiff Frank C. Brame VINSON & ELKINS LLP Trammell Crow Center 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 Telephone: 214-220-7792 Facsimile: 214-999-7792

• Appellees Cathryn Harris, Mario Herrera, and Maryam Hosseiny are individuals residing in Dallas, Texas.

• The following attorneys have appeared on behalf of Appellees either before this Court or in the district court: Thomas M. Corea Jeremy R. Wilson THE COREA FIRM, P.L.L.C. The Republic Center 325 North St. Paul Street, Suite 4150 Dallas, Texas 75201 Telephone: 214-953-3900 Facsimile: 214-953-3901 George A. Otstott Ann Jamison OTSTOTT & JAMISON, P.C. Two Energy Square 4849 Greenville Avenue, Suite 1620 Dallas, Texas 75206 Telephone: 214-522-9999 Facsimile: 214-828-4388 J. Mark Mann THE MANN FIRM 300 West Main Street Henderson, Texas 75652 Telephone: 903-657-8540 Facsimile: 903-657-6003

Respectfully submitted, _________/s/________________ Marc Rotenberg Attorney of Record for Amicus Electronic Privacy Information Center

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................i

TABLE OF AUTHORITIES ..................................................................................ii

INTEREST OF THE AMICUS CURIAE ................................................................1

SUMMARY OF THE ARGUMENT......................................................................3

ARGUMENT .........................................................................................................5

I. The Video Privacy Protection Act Purposefully Provides a Private Right of Action .................................................................................................................5

II. Privacy Laws Routinely Provide Private Rights of Action..........................10

III. Privacy Scholars Have Routinely Noted the Importance of a Private Right of Action in Privacy Laws.................................................................................14

IV. Mandatory Arbitration Clauses Undercut the Video Privacy Protection Act’s Consumer Privacy Safeguards .................................................................20

A. Mandatory Arbitration Clauses in Consumer Contracts Can Be Invalidated for a Variety of Reasons ................................................................................20

B. Courts Have Specifically Held That Mandatory Arbitration Is Not a Sufficient Substitute for Statutory Privacy Rights..........................................26

C. Mandatory Arbitration of VPPA Claims Is Impermissible.......................27

CONCLUSION ....................................................................................................31

CERTIFICATE OF COMPLIANCE ....................................................................32

CERTIFICATE OF SERVICE .............................................................................33

ii

TABLE OF AUTHORITIES

CASES Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997) ..........................................29 AutoNation USA Corp. v. Leroy, 105 S.W.3d 190 (Tex. App. 2003) ....................29 Dale v. Comcast Corp., 498 F.3d 1216 (11th Cir. 2007)................................. 23, 28 Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.

749 (1989)...........................................................................................................6 Doctor’s Assocs. v. Casarotto, 517 U.S. 681 (1996).............................................22 Doe v. Chao, 540 U.S. 640 (2004)........................................................................13 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) ..............................21 Green Tree Fin. Corporation-Alabama v. Randolph, 531 U.S. 79 (2000).............22 Hooters of Am., Inc. v. Phillips, 173 F.3d 933 (4th Cir. 1999) ..............................22 Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003)...........................25 Kristian v. Comcast Corp., 446 F.3d 25 (1st Cir. 2006)........................................23 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985) .........22 Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1

(1983) ...............................................................................................................21 Olmstead v. United States, 277 U.S. 438 (1928) .....................................................6 Parks v. IRS, 618 F.2d 677 (1980)........................................................................29 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) ................21 Schmidt v. U.S. Dep’t of Veterans Affairs, 218 F.R.D. 619 (ED Wis. 2003) ... 26, 27 Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138 (Ct. App. 1997)............................25 Wilko v. Swan, 346 U.S. 427 (1953) .....................................................................21

STATUTES 18 U.S.C. § 2708 (2008)................................................................................. 10, 28 Cable Communications Policy Act, 47 U.S.C. § 551 (2008)........................... 13, 14 Electronic Communications Privacy Act, 18 U.S.C. § 2707 (2008)......................12 Federal Arbitration Act,9 U.S.C. § 2 (2008) .........................................................20 Federal Wiretap Act, 18 U.S.C. § 2520 (2008) .....................................................12

iii

N.Y. Civ. Rights Law § 51 (Consol. 2009)...........................................................19 Privacy Act of 1974, 5 U.S.C. § 552a (2008).................................................. 12, 13 Telephone Consumer Protection Act, 47 U.S.C. § 227 (2008)..............................11 Texas Medical Privacy Act, Tex. Health & Safety Code Ann. § 181 (2008).........14 Video Privacy Protection Act of 1988 (VPPA), 18 U.S.C. § 2710 (2008)...........5, 7

OTHER AUTHORITIES 134 Cong. Rec. S16312 (1988)..................................................................... 5, 9, 10 A. Westin, Privacy and Freedom (1967).................................................................6 Alan M. White & Cathy Lesser Mansfield, Literacy and Contract, 13 Stan. L. &

Pol’y, Rev. 233 (2002) ......................................................................................24 Anita L. Allen, Privacy Law and Society (2009) ..................................................14 Christine Jolls, Cass R. Sunstein, & Richard Thaler, A Behavioral Approach to

Law and Economics, 50 Stan. L. Rev. 1471 (1997) ...........................................25 Daniel J. Solove & Chris Jay Hoofnagle, A Model Regime of Privacy Protection,

2006 U. Ill. L. Rev. 357 (2006) .........................................................................15 Daniel J. Solove, Marc Rotenberg, & Paul M. Schwartz, Information Privacy Law

(2006) ...............................................................................................................14 Ely R. Levy & Norman I. Silber, Nonprofit Fundraising and Consumer Protection:

A Donor’s Right to Privacy, 15 Stan. L. & Pol’y Rev 519 (2004) .....................18 Frank P. Anderano, The Evolution of Federal Computer Crime Policy, 27 Am.

J.Crim. L. 81 (1999)..........................................................................................15 Frederick Z. Lodge, Note, Damages Under the Privacy Act of 1974: Compensation

and Deterrence, 52 Fordham L. Rev. 611 (1984) ........................................ 16, 19 H.R. Rep. No. 93-1416 (1974)..............................................................................16 Haeji Hong, Esq., Dismantling the Private Enforcement of the Privacy Act of 1974:

Doe v. Chao, 38 Akron L. Rev. 71 (2005).........................................................15 Hearing on H.R. 2221, the Data Accountability and Trust Act; H.R. 1319, the

Informed P2P User Act Before the Subcomm. on Commerce, Trade and Consumer Protection of the H. Comm. on Energy and Commerce, 111th Cong. (2009) ...............................................................................................................19

Irwin S. Kirsch et al., U.S. Dep’t of Education, Adult Literacy in America: A First Look at the Results of the National Adult Literacy Survey (1993) ....................24

iv

James P. Nehf, Recognizing the Societal Value in Information Privacy, 78 Wash L. Rev. 1 (2003) ....................................................................................................18

Jay Weiser, Measure of Damages for Violation of Property Rules: Breach of Confidentiality, 9 U. Chi. L. Sch. Roundtable 75 (2002) ...................................16

Jean R. Sternlight & Elizabeth J. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67 SPG L. & Contemp. Probs. 75 (2004) ................................................................. 23, 28

Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 Stan. L. Rev. 1631 (2005)................................................................................................ passim

Jerry Kang, Information Privacy Transactions in Cyberspace, 50 Stan. L. Rev. 1193 (1998).......................................................................................................17

Michael Dolan, The Bork Tapes Saga.....................................................................5 Paul M. Schwartz, Property, Privacy, and Personal Data, 117 Harv. L. Rev. 2055

(2004) ...............................................................................................................17 Richard M. Alderman, Pre-dispute Mandatory Arbitration in Consumer Contracts:

A Call for Reform, 38 Hous. L. Rev. 1237 (2001) .............................................24 S. Rep. No. 100-599 (1988)...................................................................... 5, 6, 8, 27 S. Rep. No. 93-1183 (1974)..................................................................................16 Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193

(1890) ...............................................................................................................19 Shaun B. Spencer, Reasonable Expectations and the Erosion of Privacy, 39 San

Diego L. Rev. 843 (2002)............................................................................ 18, 19 Video and Library Privacy Protection Act of 1988: Joint Hearing on H.R. 4947

and S.2361 Before the H. Comm. on the Judiciary and the S. Comm. on the Judiciary, 100th Cong. (1988).................................................................... passim

William Catron Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 Wash. U. L.Q. 193 (1956) ...................................................21

William McGeveran, Disclosure, Endorsement, and Identity in Social Marketing, 2009 U. Ill. L. Rev. 1105 (2009) .......................................................................19

RULES Telemarketing Sales Rule, 67 Fed. Reg. 4491 (proposed Jan. 30, 2002) (to be

codified at 16 C.F.R. pt. 310) ............................................................................11

1

INTEREST OF THE AMICUS CURIAE1

The Electronic Privacy Information Center (EPIC) is a public interest

research center in Washington, D.C. EPIC was established in 1994 to focus public

attention on emerging privacy and civil liberties issues. EPIC has participated as

amicus curiae in several cases before the U.S. Supreme Court and other courts

concerning privacy issues, new technologies, and Constitutional interests,

including Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009); Herring v.

United States, 129 S. Ct. 695 (2009); Crawford v. Marion County Election Board,

128 S. Ct. 1610 (2008); Hiibel v. Sixth Judicial Circuit of Nevada, 542 U.S. 177

(2004); Doe v. Chao, 540 U.S. 614 (2003); Smith v. Doe, 538 U.S. 84 (2003);

Department of Justice v. City of Chicago, 537 U.S. 1229 (2003); Watchtower Bible

and Tract Society of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002); Reno v.

Condon, 528 U.S. 141 (2000); National Cable and Telecommunications

Association v. Federal Communications Commission, 555 F.3d 996 (D.C. Cir.

2009); Kohler v. Englade, 470 F.3d 1104 (5th Cir. 2006) 470 F.3d 1104 (5th Cir.

2006); United States v. Kincade, 379 F.3d 813 (9th Cir. 2004), cert. denied 544

U.S. 924 (2005); and State v. Raines, 857 A.2d 19 (Md. 2003).

EPIC has a strong interest in protecting consumer privacy and ensuring the

full protections set out in federal privacy law. Mandatory arbitration clauses, such

1 All parties have consented to the filing of this brief. Fed. R. App. P. 29(a).

2

as Blockbuster’s provision at issue in this case, prevent consumers from seeking

remedies set out in federal law. With respect to the Video Privacy Protection Act,

it is clear that Congress intended to ensure that a private right of action be available

to consumers. To permit companies to substitute unilaterally mandatory arbitration

clauses for the express language set out in federal statute will undermine privacy

safeguards, contribute to further privacy harms, and frustrate the intent of

Congress.

3

SUMMARY OF THE ARGUMENT

Congress passed the Video Privacy Protection Act of 1988 to prevent the

wrongful disclosure of video rental information by companies that collect detailed

personal information from customers. To achieve this goal, Congress established a

private right of action to ensure that there would be a meaningful remedy when

companies failed to safeguard the data they collected. The Congress recognized

that absent a private right of action, there would be no effective enforcement, no

remedy for violations, and no way to ensure that companies complied with the

intent of the Act.

Private rights of action are routinely found in federal and state privacy laws

because they help ensure that the legislative intent to safeguard privacy is fulfilled.

Congress, courts, and scholars have recognized the importance of private rights of

action in enforcing privacy laws. Indeed, in the absence of a private right of action,

it is doubtful that Congress would even legislate to safeguard privacy, as there

would be little purpose to a law that regulated business practices but lacked a

means of enforcement.

Mandating arbitration of violations of federal privacy laws through

consumer contracts is especially problematic. Courts have held that Congress may

make claims nonarbitrable; permitting mandatory arbitration agreements in this

context would violate Congress’ intent to provide a private right of action as the

4

exclusive remedy for violations of the Act. Moreover, mandatory arbitration would

prevent aggrieved parties from effectively vindicating their statutory rights.

Finally, mandatory arbitration agreements in consumer contracts implicate serious

public policy concerns, many of which are especially compelling in this context.

Given the growing risk of identity theft and security breaches, and American

consumers’ ongoing concerns of about the protection of their personal information,

the attempt to undo a clear congressional intent to establish meaningful

enforcement for violations of federal law by an mandatory arbitration provision is

both unconscionable and unlawful.

5

ARGUMENT

I. The Video Privacy Protection Act Purposefully Provides a Private Right of Action

Congress made clear its intent to enact a robust privacy law. As the Senate

Judiciary Committee report explained, “The Video Privacy Protection Act follows

a long line of statutes passed by the Congress to extend privacy protection to

records that contain information about individuals.” S. Rep. No. 100-599, at 2

(1988) [hereinafter Committee Report]; see Video Privacy Protection Act of 1988

(VPPA), 18 U.S.C. § 2710 (2008). Congress passed the act in the wake of the well-

publicized scandal in which Supreme Court nominee Robert H. Bork’s video rental

records were published by a Washington, D.C newspaper the year before. 134

Cong. Rec. S16312, 16313–14 (1988); see also Michael Dolan, The Bork Tapes

Saga2 (last visited October 26, 2009). Describing the purpose of the bill,

Representative McCandless testified that “[a]t the heart of the legislation is the

notion that all citizens have a right to privacy—the right to be let alone—from their

Government and from their neighbor.” Video and Library Privacy Protection Act

of 1988: Joint Hearing on H.R. 4947 and S.2361 Before the H. Comm. on the

Judiciary and the S. Comm. on the Judiciary, 100th Cong. 27 (1988) [hereinafter

Hearing Record] (statement of Rep. McCandless). Thus, the bill was intended to

2 Available at http://www.theamericanporch.com/bork2.htm

6

“protect[] the privacy of consumers of content-based materials,” by building “a

brick wall—a Federal privacy right—around the individual.” Id.

The Congress recognized the paramount importance of the privacy right

protected by the Act: “Every day Americans are forced to provide to businesses

and others personal information without having any control over where that

information goes. These records are a window into our loves, likes, and dislikes.”

Committee Report, at 6–7 (quoting Sen. Paul Simon, 134 Cong. Rec. S5400-01

(May 10, 1988)). Indeed, our legal system has long recognized and protected the

right of personal privacy. The Constitution’s drafters “conferred, as against the

Government, the right to be let alone—the most comprehensive of rights and the

right most valued by civilized man. To protect that right, every unjustifiable

intrusion by the Government upon the privacy of the individual, whatever the

means employed, must be deemed a violation” of constitutional principles.

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

As the Supreme Court noted, “both the common law and the literal

understandings of privacy encompass the individual’s control of information

concerning his or her person.” Department of Justice v. Reporters Committee for

Freedom of the Press, 489 U.S. 749, 763 (1989); see also A. Westin, Privacy and

Freedom 7 (1967) (“Privacy is the claim of individuals . . . to determine for

7

themselves when, how, and to what extent information about them is

communicated to others”).

Recognizing the important privacy rights at issue, the VPPA provides a

private right of action that is integral to fulfilling Congress’s intent in passing the

bill. The relevant portion of the Act reads as follows:

(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.

(2) The court may award— (A) actual damages but not less than liquidated damages in an

amount of $2,500; (B) punitive damages; (C) reasonable attorneys’ fees and other litigation costs reasonably

incurred; and (D) such other preliminary and equitable relief as the court

determines to be appropriate. (3) No action may be brought under this subsection unless such action

is begun within 2 years from the date of the act complained of or the date of discovery.

(4) No liability shall result from lawful disclosure permitted by this section.

18 U.S.C. § 2710(c) (2008).

The civil action described in subsection (c) is the only enforcement

mechanism provided by Congress in the statute. The Senate Committee Report

emphasized the importance of the civil remedy section:

The civil remedies section puts teeth into the legislation, ensuring that the law will be enforced by individuals who suffer as the result of unauthorized disclosures. It provides that an individual harmed by a violation of the Act may seek compensation in the form of actual and punitive damages, equitable and declaratory relief and attorneys’ fees and costs.

8

Statutory damages are necessary to remedy the intangible harm caused by privacy intrusions. Similar remedies exist in the federal wiretap statute as revised by this committee in 1986. The absence of such a remedy in the Privacy Act of 1974 is often cited as a significant weakness.

Committee Report at 8 (emphasis added).

Testimony during a joint congressional hearing on the bill also made clear

the importance of the enforcement mechanism. Senator Paul Simon, a co-sponsor

of the Act, stated about the original bill, which also contained provisions to

safeguard library record information:

The Video and Library Privacy Act of 1988 takes an important step in ensuring that individuals will maintain control over their personal information when renting or purchasing a move or when borrowing a library book. The bill specifically provides for a federal cause of action in the event a list which identifies the books we read or the movies we watch is released.

Hearing Record at 131–32 (statement of Sen. Paul Simon) (emphasis added).

Senator Simpson, another cosponsor of the Act, stated:

It is that cherished American right of privacy that we are protecting with this legislation. People in the country may not even be able to read or understand the Constitution, but they surely can understand the concept of privacy in their personal lives. Plain old unmitigated unvarnished privacy. The right to be left alone. That is why such diverse groups are working on this bill in order to ensure its passage.

Id. at 134 (statement of Sen. Alan K. Simpson).

9

Even the Video Software Dealers Association, an industry group

representing companies that would be subject to the law, endorsed the version of

the bill that included the civil remedy:

We support H.R. 4947 and S. 2361, which would prohibit the disclosure of individual customer rental or sales records, except in very limited circumstances. In our view, rental and sales records are privileged matters between the retailer and the customer. That is the firm policy of VSDA and its members.

Id. at 81 (statement of Vans Stevenson, for the Video Software Dealers Ass’n and

Erol’s Inc.). Mr. Stevenson went on to state “We applaud the proposed bills to

formally protect a reasonable right of privacy for the video customer. We believe

that the legislation will help to strengthen our company’s policy as well as other

similar policies practiced by the other video retailers in VSDA.” Id. at 86. By

implication, Mr. Stevenson made clear that substituting a weaker privacy

mechanism would lead companies to establish weaker privacy policies.

When Senator Leahy, the bill’s original sponsor, introduced the bill, he

denounced the revelation of Bork’s records as “outrageous” and described the Act

as “a bill that will extend privacy protection to all Americans.” 134 Cong. Rec.

S16312, 16313 (1988) (statement of Sen. Leahy). Senator Grassley, another

member of the Committee on the Judiciary and a co-sponsor of the bill, also spoke

in favor of the bill, discussing how civil liability was intended to shape the

behavior of video stores and their employees:

10

This bill imposes liability on the video store where the information is knowingly disclosed in violation of the bill’s requirements. And under the common law of agency, an employer may be liable for the actions of its employees where the employee acts within the scope of his employment. A video store would, therefore, be best advised to educate its employees about the bill’s provisions and discipline employees for unauthorized disclosures. A court would, no doubt, take such employers’ actions into account in determining whether the employee was acting within the scope of his job in the event of a prohibited disclosure.

Id. at 16314 (statement of Sen. Grassley).

The text and the legislative history make Congressional intent abundantly

clear: the private right of action called for in subsection (c) is the exclusive method

chosen by the legislature for enforcement of the VPPA.

Indeed, Congress took an additional step to protect the judicial remedies set

out in the bill when it chose to codify the Act at 18 U.S.C. § 2710 (2008). This

section falls within Chapter 121 of Title 18 and therefore makes the Act subject to

the “Exclusivity of remedies” provision set out in 18 U.S.C. § 2708 (2008). Section

2708 states that, “The remedies and sanctions described in this chapter are the only

judicial remedies and sanctions for non-constitutional violations of this chapter.”

Id. It is difficult to imagine that Congress could have done anything more to

safeguard the private right of action established by the Video Privacy Protection

Act.

II. Privacy Laws Routinely Provide Private Rights of Action

11

Private rights of action are a central feature in privacy statutes because they

help ensure enforcement of privacy rights. This is particularly important in privacy

law, as it may be difficult to otherwise vindicate privacy claims.

Private rights of action have traditionally been a key component in privacy

statutes. Aside from the Video Privacy Protection Act, many other privacy laws

provide a right of action or civil remedy component, which allow victims to seek

remedies in court.

The Telephone Consumer Protection Act (“TCPA”), which was enacted to

combat problems associated with telemarketing, auto-dialers and junk faxes, states

that “[a] person or entity may . . . bring in an appropriate court of that State . . . an

action based on a violation of this subsection or the regulations prescribed under

this subsection.” 47 U.S.C. § 227(b)(3) (2008). Plaintiffs can recover their actual

monetary loss from such a violation or receive $500 in damages for each such

violation, whichever is greater. Id. Moreover, if the court finds that the defendant

willfully or knowingly violated the statute, the court is authorized to triple the

amount of the award. Id. Actions brought under the TCPA allow consumers to

vindicate privacy claims and led to the creation of the very successful Do Not Call

list. See Telemarketing Sales Rule, 67 Fed. Reg. 4491 (proposed Jan. 30, 2002) (to

be codified at 16 C.F.R. pt. 310).

12

The Federal Wiretap Act allows “any person whose wire, oral, or electronic

communication is intercepted, disclosed, or intentionally used” in violation of the

statute to pursue “a civil action [to] recover from the person or entity, other than

the United States, which engaged in that violation such relief as may be

appropriate.” 18 U.S.C. § 2520(a) (2008). Complainants may then recover

appropriate preliminary and other equitable or declaratory relief, damages

(including punitive damages in appropriate cases), and reasonable attorney’s fees

and litigation costs. Id.

Similarly, the Electronic Communications Privacy Act (“ECPA”), which

prohibits providers of electronic communications services from disclosing the

contents of stored communications, states that aggrieved individuals or entities

“may, in a civil action, recover from the person or entity, other than the United

States, which engaged in that violation such relief as may be appropriate.” 18

U.S.C. § 2707, (a) (2008). The ECPA allows complainants to collect appropriate

preliminary and other equitable or declaratory relief, damages (not including

punitive damages), and reasonable attorney’s fees and litigation costs. Id.

The Privacy Act, which limits the collection, disclosure, and use of personal

information by government agencies, creates a private right of action against

agencies that violate the Act. 5 U.S.C. § 552a(g)(1) (2008). If any agency violates

the Privacy Act, “an individual may bring a civil action against the agency, and the

13

district courts of the United States shall have jurisdiction in the matters under the

provisions of this subsection.” Id. The Act allows for remedies in three situations:

when the agency refuses to correct records, when the agency refuses to disclose

records to an individual who is entitled to them, and when the agency willfully or

intentionally discloses records in violation of the statute. Id. In all three situations,

the Act allows for courts to compel the agency to act in accordance with the statute

and allows for aggrieved parties to recover reasonable attorney’s fees and litigation

costs. Id. In the case of a wrongful disclosure that is willful or intentional, the

statute authorizes recovery of “actual damages sustained by the individual as a

result of the refusal or failure, but in no case shall a person entitled to recovery

receive less than the sum of $1,000.” Id. See generally, Doe v. Chao, 540 U.S. 640

(2004) (holding that actual damages are necessary to recover under the Privacy Act

but affirming the civil damages provision.).

The Cable Communications Policy Act prohibits cable television companies

from using the cable system to collect personal information about its subscribers

without their prior consent, and generally bars the cable operator from disclosing

such data. 47 U.S.C. § 551(f) (2008). “Any person aggrieved by any act of a cable

operator in violation of this section may bring a civil action in a United States

district court.” Id. The court may award actual damages but not less than liquidated

damages computed at the rate of $100 a day for each day of violation or $1,000,

14

whichever is higher. The court may also award punitive damages and reasonable

attorney’s fees and litigation costs. Id. The Act notes that “[t]he remedy provided

by this section shall be in addition to any other lawful remedy available to a cable

subscriber.” Id.

State laws protect individuals’ privacy regarding library records, medical

records, employment records, genetic information records, and many other kinds of

records. The statutes often contain private rights of action, along with liquidated

damages. The Texas Medical Privacy Act,3 Tex. Health & Safety Code Ann. § 181

(2008), for example, protects sensitive, personal information from improper use or

disclosure. The Act also provides civil penalties to help ensure that the Act’s

provisions are enforced. Id. § 181.201.

III. Privacy Scholars Have Routinely Noted the Importance of a Private Right of Action in Privacy Laws

Privacy scholars have routinely noted the private right of action in the Video

Privacy Protection Act. See, e.g., Anita L. Allen, Privacy Law and Society 628

(2009) (“The Act contains a civil remedy provision that allows an aggrieved party

to bring an action in the United States District Court within two years of the date of

discovery of an alleged violation.”); see also, Daniel J. Solove, Marc Rotenberg, &

Paul M. Schwartz, Information Privacy Law 661 (2006) (“The VPPA’s private

3 http://www.law.uh.edu/healthlaw/perspectives/privacy/010830texas.html

15

right of action permits recovery of actual damages and provides for liquidated

damages in the amount of $2,500.”).

Scholars have also stressed the importance of private rights of action in

privacy statutes generally. See, e.g., Daniel J. Solove & Chris Jay Hoofnagle, A

Model Regime of Privacy Protection, 2006 U. Ill. L. Rev. 357, 382 (2006) (“There

should be minimum liquidated damages provisions for companies that violate their

privacy policies or that suffer a security breach due to negligence. Statutes must

provide for individual redress”). Scholars have cited a variety of reasons for

supporting private rights of action. Two of the most commonly cited reasons for

supporting private rights of actions are that private rights of action place

enforcement in victims’ hands and that private rights of action deter would-be

violators. Frank P. Anderano, The Evolution of Federal Computer Crime Policy,

27 Am. J.Crim. L. 81, 98 (1999).

Concerning the federal Privacy Act, scholars have argued that private rights

of action are important because “federal agencies have little incentives to enforce

the Privacy Act.” Haeji Hong, Esq., Dismantling the Private Enforcement of the

Privacy Act of 1974: Doe v. Chao, 38 Akron L. Rev. 71, 102 (2005) (citing 120

Cong. Rec. 36,645 (remarks of Rep. Abzug), reprinted in Joint Comm. on Gov't

Operations, Legislative History of the Privacy Act of 1974: Source Book on

Privacy 887 (1976) [hereinafter Source Book]). Thus, Congress provided the civil

16

remedy in that Act in order to “encourage the widest possible citizen enforcement

through the judicial process.” S. Rep. No. 93-1183, at 83 (1974), reprinted in

Source Book at 236. One Congressman described the “constant vigilance of

individual citizens backed by legal redress” as the “best means” to enforce the Act.

H.R. Rep. No. 93-1416, at 15 (1974), reprinted in Source Book, at 308. See

generally Frederick Z. Lodge, Note, Damages Under the Privacy Act of 1974:

Compensation and Deterrence, 52 Fordham L. Rev. 611, 613 (1984) (arguing that

“Congress repeatedly emphasized the overwhelming importance of privacy, and

that “[t]hrough its civil remedy, the Act is aimed at deterring future intrusions on

this critical right and at compensating the victims of illegal invasions of privacy”).

Professor Jay Weiser has written that federal privacy statutes attempt to resolve the

difficulty in calculating damages through liquidated damages provisions, which in

turn saves enforcement costs. Jay Weiser, Measure of Damages for Violation of

Property Rules: Breach of Confidentiality, 9 U. Chi. L. Sch. Roundtable 75, 100

(2002).

More generally, scholars have argued that statutory private rights of action

are essential to protecting privacy rights through deterrence. “Private rights of

action, including class actions . . . can be highly effective in increasing compliance

with statutory standards. . . . In addition, it overcomes the weaknesses of the

privacy tort, which generally has not proved useful in responding to violations of

17

information privacy.” Paul M. Schwartz, Property, Privacy, and Personal Data,

117 Harv. L. Rev. 2055, 2112–15 (2004) (advocating for the formation of a statute

regulating data trading that “should track language found in statutes such as the

Video Privacy Protection Act, Driver's Privacy Protection Act, and Cable

Communications Act, and should permit liquidated damages”). A private right of

action “encourages litigation, the specter of which may deter infringements of

privacy. It will also allow others who are not parties to the litigation to benefit

from improved privacy practices that follow successful litigation.” Id. at 2083; see

also Jerry Kang, Information Privacy Transactions in Cyberspace, 50 Stan. L.

Rev. 1193, 1272 (1998) (“[T]he information collector must be subject to sanction

through civil action in federal court and administrative enforcement by the Federal

Trade Commission.”).

Scholars have observed that private rights of action “encourage companies

to keep privacy promises by setting damages high enough to deter potential

violators and encourage litigation to defend privacy entitlements. In addition,

damages support a privacy commons by promoting social investment in privacy

protection.” Schwartz, supra at 2109.

Other scholars have recommended that charitable donors’ privacy rights

should be protected by a private right of action due to “important concerns” such

as “the scarce resources of state attorneys general to enforce, the principal

18

incentives to share information notwithstanding the express wishes of donors, and

the overarching risk that disregarding donor privacy rights could undermine

confidence in the nonprofit sector. . . .” Ely R. Levy & Norman I. Silber, Nonprofit

Fundraising and Consumer Protection: A Donor’s Right to Privacy, 15 Stan. L. &

Pol’y Rev 519, 570–71 (2004).

Other scholars have persuasively argued that privacy rights require more

protection than private rights of action and other market forces provide. See James

P. Nehf, Recognizing the Societal Value in Information Privacy, 78 Wash L. Rev.

1, 8 (2003) (arguing for “regulation similar to the European model of privacy

protection, in which the issue is framed as a foundation of social protection”);

Shaun B. Spencer, Reasonable Expectations and the Erosion of Privacy, 39 San

Diego L. Rev. 843, 890–909 (2002) (arguing for “broad structural measures

empowering individuals to claim their own privacy”).

In the context of private rights of action, liquidated damages provisions,

such as the one provided for by the VPPA, are essential:

Schemes providing for liquidated damages will assist the operation of the privacy market and the construction and maintenance of a privacy commons. It will encourage companies to keep privacy promises by setting damages high enough to deter potential violators and encourage litigation to defend privacy entitlements. In addition, damages support a privacy commons by promoting social investment in privacy protection. Such damages may also reduce the adverse impact of collective action problems in the privacy market by allowing consumers who do not litigate to benefit from the improved privacy practices that follow from successful litigation.

19

Id. at 2109. One central problem in privacy cases is the difficulty for the aggrieved

party to establish quantifiable damages in the absence of a statute containing a

liquidated damages provision. See William McGeveran, Disclosure, Endorsement,

and Identity in Social Marketing, 2009 U. Ill. L. Rev. 1105, 1141 (2009)

(discussing the privacy problems inherent in social marketing and noting that “the

emotional or psychic harms caused by disclosures in social marketing are difficult

to quantify and, in any case, are likely small. Injured parties who file lawsuits to

enforce their rights under privacy law often encounter great difficulty proving

damages”); Lodge, supra, at 612. This problem was well understood by Samuel

Warren and Louis Brandeis, the authors of the famous article that provided the

basis for the privacy tort and that led to the statutory formulation of privacy claims.

Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 219

(1890) (“Even in the absence of special damages, substantial compensation could

be allowed for injury to feelings as in the action of slander and libel.”); N.Y. Civ.

Rights Law § 51 (Consol. 2009).

The private right of action is particularly important as technology continues

to progress, allowing for the easier dissemination of personal information. See,

e.g., Hearing on H.R. 2221, the Data Accountability and Trust Act; H.R. 1319, the

Informed P2P User Act Before the Subcomm. on Commerce, Trade and Consumer

Protection of the H. Comm. on Energy and Commerce, 111th Cong. 5–6 (2009)

20

(statement of Marc Rotenberg, Executive Director, EPIC) (“. . . the Committee

[should] add a private right of action to the bill with a stipulated damage award, as

is found in many other privacy laws. Not only would this provide the opportunity

for individuals who have been harmed by security breaches to have their day in

court, it would also provide a necessary backstop to the current enforcement

scheme which relies almost entirely on the Federal Trade Commission, acting on

its own discretion and without any form of judicial review, to enforce private

rights.”).

IV. Mandatory Arbitration Clauses Undercut the Video Privacy Protection Act’s Consumer Privacy Safeguards

A. Mandatory Arbitration Clauses in Consumer Contracts Can Be Invalidated for a Variety of Reasons

Voluntary binding arbitration between parties with similar bargaining power

has a long history, and courts have historically supported such agreements.

Accordingly, the Federal Arbitration Act (FAA) in 1925, provides that arbitration

agreements in contracts involving interstate commerce “shall be valid, irrevocable

and enforceable, save upon such grounds as exist at law or in equity for the

revocation of any contract,” and requires courts to grant motions to compel

arbitration pursuant to such agreements. 9 U.S.C. § 2 (2008). However, voluntary

binding arbitration agreements were historically entered into by parties with

similar bargaining power—for example, contracts between businesses or between

21

management and unions. See generally Jean R. Sternlight, Creeping Mandatory

Arbitration: Is It Just?, 57 Stan. L. Rev. 1631, 1643–44 (2005) (discussing history

of arbitration generally) [hereinafter “Creeping Mandatory Arbitration”]; William

Catron Jones, Three Centuries of Commercial Arbitration in New York: A Brief

Survey, 1956 Wash. U. L.Q. 193, 219 (1956) (reviewing uses of arbitration in New

York beginning in the 1600s and concluding that “[t]he primary function of

arbitration is to provide for merchants fora where mercantile disputes will be

settled by merchants”). In contrast, Congress did not appear to intend mandatory

arbitration clauses in consumer contracts to fall under the rubric of the FAA when

it was passed, see Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,

412–15 (1967) (Black, J., dissenting) (discussing legislative history of the FAA),

and an early Supreme Court decision held that such clauses were impermissible in

the context of securities fraud claims. See Wilko v. Swan, 346 U.S. 427, 435–36

(1953).

More recently, however, the Supreme Court reversed its previous position,

holding that federal policy favors arbitration of commercial disputes, even in

consumer contracts. See Moses H. Cone Memorial Hospital v. Mercury

Construction Corp., 460 U.S. 1, 24–25 (1983); Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20, 35 (1991). Nonetheless, the Court has made clear that

Congress has the power to make claims nonarbitrable if it “has evinced an

22

intention to preclude a waiver of judicial remedies for the statutory rights at issue.”

Green Tree Fin. Corporation-Alabama v. Randolph, 531 U.S. 79, 90 (2000) (citing

Gilmer, 500 U.S. at 26; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473

U.S. 614, 628 (1985)).

Moreover, the Court has held that an arbitration clause should not be

enforced if the challenger can show that it was written in a way that “preclude[s] a

litigant . . . from effectively vindicating her federal statutory rights in the arbitral

forum.” Green Tree Fin., 531 U.S. at 90; see Mitsubishi Motors Corp., 473 U.S. at

637. See generally Creeping Mandatory Arbitration, supra, at 1643–44 (reviewing

successful federal statutory challenges to arbitration agreements). For instance, in

Green Tree Fin. Corporation-Alabama v. Randolph, the Court held that “the

existence of large arbitration costs” could prevent a litigant from effectively

vindicating her statutory rights. Green Tree Fin., 531 U.S. at 90–91.

Similarly, “[g]enerally applicable contract defenses, such as . . .

unconscionability, may be applied to invalidate arbitration agreements.” Doctor’s

Assocs. v. Casarotto, 517 U.S. 681, 682 (1996); see also, e.g., Hooters of Am., Inc.

v. Phillips, 173 F.3d 933, 938 (4th Cir. 1999) (finding unconscionable an

arbitration provision that, inter alia, limited discovery and available remedies and

bound only the employee). See generally Creeping Mandatory Arbitration, supra,

at 1644–45 (“as the Supreme Court has frequently stated, arbitration clauses can be

23

invalidated on standard common law grounds”); Jean R. Sternlight & Elizabeth J.

Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business

Practice or Unconscionable Abuse?, 67 SPG L. & Contemp. Probs. 75, 77–78

(2004) (“While the Supreme Court views arbitration favorably, it has always made

clear that unconscionable arbitration clauses should not be enforced.”). Thus,

several courts have held that arbitration agreements which preclude class actions

are unconscionable under certain circumstances. See Dale v. Comcast Corp., 498

F.3d 1216, 1224 (11th Cir. 2007) (“based on the totality of circumstances, we

conclude the Comcast class action waiver is unconscionable to the extent it

prohibits the subscribers from bringing a class action”); Kristian v. Comcast Corp.,

446 F.3d 25, 59 (1st Cir. 2006) (“Because of the presence of the bar on class

mechanisms in arbitration, Plaintiffs cannot be compelled to arbitrate their antitrust

claims, both state and federal, if that bar remains in place.”). See generally

Sternlight & Jensen, supra at 85–92 (arguing that courts are more likely to

invalidate clauses as unconscionable where individual claims would not be feasible

either financially or due to lack of information as to the merits of the claim or the

nature of arbitration; where individual suits “would not result in full enforcement

of the law;” or where “administrative enforcement would not be an adequate

substitute for the class action.”).

24

Public policy also weighs against mandatory arbitration in consumer

contracts where it would prevent the consumer from effectively vindicating

statutory rights. See generally Creeping Mandatory Arbitration, supra, at 1648–53

(reviewing criticisms of mandatory arbitration from the individual perspective).

First, mandatory consumer arbitration agreements are inherently

nonconsensual. See id. at 1648–49; Richard M. Alderman, Pre-dispute Mandatory

Arbitration in Consumer Contracts: A Call for Reform, 38 Hous. L. Rev. 1237,

1249 (2001) (“as a general rule, it is safe to assume that pre-dispute mandatory

arbitration has been imposed on the consumer with an absence of any meaningful

choice”). Consumers rarely read, much less understand, boilerplate agreements. See

Irwin S. Kirsch et al., U.S. Dep’t of Education, Adult Literacy in America: A First

Look at the Results of the National Adult Literacy Survey 17, fig. 1.1 (1993) (Only

3% of the American adult population has “documentary” literacy skills at the level

necessary to, for example, compare the substantive differences between two

contracts.); Alan M. White & Cathy Lesser Mansfield, Literacy and Contract, 13

Stan. L. & Pol’y, Rev. 233 (2002) (“Most consumers cannot and do not understand

the preprinted forms when they sign a consumer contract. Actual assent is not just

a fiction because of voluntary choices by consumers; it is effectively impossible.”).

Moreover, behavioral research indicates that individuals may be largely incapable

of properly balancing the costs and benefits of arbitration clauses and may

25

undervalue their right to sue. See Christine Jolls, Cass R. Sunstein, & Richard

Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471,

1541–43 (1997) (“Overoptimism” and “salience” are problems arising from one’s

“insufficient ability to process accurately the information one possesses insofar as

that information bears on one’s own risks. . . . People sometimes do mispredict

their utility at the time of decision, and on conventional grounds, this phenomenon

raises serious problems for the idea of consumer sovereignty.”).

Second, many arbitration agreements substantively favor companies rather

than consumers through “arbitrator selection, imposition of high costs, and

limitation of remedies.” Creeping Mandatory Arbitration, supra, at 1650.

Finally, some arbitration clauses “limit plaintiffs’ access to substantive

relief” by, for example, shortening statutes of limitations, barring recovery of

certain damages, or barring injunctive relief. Creeping Mandatory Arbitration,

supra, at 1652–53; see Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1175 (9th

Cir. 2003) (arbitration agreement unconscionable where it shortened the applicable

statute of limitations); Stirlen v. Supercuts, Inc., 60 Cal. Rptr. 2d 138, 142–43 (Ct.

App. 1997) (arbitration agreement unconscionable where it precluded injunctive

relief).

26

B. Courts Have Specifically Held That Mandatory Arbitration Is Not a Sufficient Substitute for Statutory Privacy Rights

Courts have specifically addressed whether arbitration is a sufficient

alternate forum for privacy related disputes and have determined that it is not. In

Schmidt v. U.S. Dep’t of Veterans Affairs, 218 F.R.D. 619 (ED Wis. 2003), the

court considered the case of several employees whose social security numbers

were disclosed by their employers, the Veterans Administration, in violation of the

Privacy Act. The disclosure in question had already been the topic of collective

bargaining arbitration because privacy rights were protected under the employees’

contract. Id. at 625. The plaintiffs argued that the arbitration decision should

preclude the court from considering the matter de novo. Id. at 627. But the court

determined that an arbitration decision did not provide a sufficient alternative to

judicial proceedings, citing the following reasons:

Collective-bargaining arbitration may be an efficient and effective way to settle contract disputes, but it is not an adequate or reliable substitute for judicial proceedings when it comes to determining whether the Privacy Act has been violated. First . . . the labor arbitrator’s competence pertains to her knowledge of the law of the shop, not the law of the land . . . knowing the law of the shop does not require an arbitrator to be conversant with the legal considerations which underlie a complex public law like the Privacy Act. . . . Most labor arbitrators, who are not attorneys, are under pressure to pivide a quick turnaround with decisions, and, consequently, they cannot be expected to make fully-informed decisions about whether an agency violated the Privacy Act.

Second, labor arbitrators derive their authority from the collective-bargaining agreement and are required to enforce the

27

agreement. . . . The arbitrator has no authority to ‘invoke public laws which conflict with bargain between the parties.’ . . .

Finally, arbitral fact-finding is not as complete as judicial fact-finding. Arbitrations typically do not follow rules of evidence, discovery, compulsory process, cross examination, and testimony under oath is severely curtailed.

Id. at 628–29.

C. Mandatory Arbitration of VPPA Claims Is Impermissible

Mandatory arbitration imposed by consumer contracts in the context of the

VPPA is particularly pernicious, as it would countermand congressional intent,

would prevent aggrieved parties from effectively vindicating their statutory rights,

and would implicate many of the public policy concerns that weigh against

enforcing such agreements.

The Court has repeatedly recognized that Congress can make claims

nonarbitrable if it evinces the intent to do so. Here, Congress has made abundantly

clear its intent to make a private right of action the exclusive method for

enforcement of the VPPA. As Representative McCandless testified, the purpose of

the Act was to build a “brick wall—a Federal privacy right—around the

individual.” Hearing Record at 27. Through the civil remedies section, Congress

intended to “put[] teeth into the legislation, ensuring that the law will be enforced.”

Committee Report at 9. By empowering the victims of privacy violations, Congress

protected the privacy rights that have long been recognized as paramount by courts

and scholars. If consumers were instead forced to arbitrate these sensitive privacy

28

claims, the “brick wall” that Congress intended to create would be reduced to

rubble.

Moreover, Congress expressly provided that “[t]he remedies and sanctions

described in this chapter are the only judicial remedies and sanctions for

nonconstitutional violations of this chapter.” 18 U.S.C. § 2708 (2008)

(“Exclusivity of remedies”). In that section, Congress plainly contemplates the

potential remedies for a violation of the VPPA and provides that the exclusive

remedy shall be the ones provided for by statute, which includes liquidated

damages but which does not include arbitration. See id. Thus, this court should

respect Congress’ intent in enacting the VPPA and find that the arbitration of

claims under it is unenforceable.

Moreover, the arbitration agreement at issue precludes class actions, a

provision that several courts have found to be unconscionable. See, e.g., Dale v.

Comcast Corp., 498 F.3d at 1224. In this case, class action preclusion is

particularly problematic because even successful individual suits would not fully

enforce the law. Individual suits, and especially individual arbitrations, are unlikely

to lead to company-wide reform of policies that violate the VPPA. See generally

Sternlight & Jenson, supra, at 90 (“A company may find it more worthwhile to pay

off a few individual claims but keep its overall policy.”). Furthermore, class

actions provide a variety of benefits to plaintiffs, from protecting less-informed

29

consumers to making claims more financially viable. See Amchem Prods. Inc. v.

Windsor, 521 U.S. 591, 617–18 (1997) (explaining financial viability justification).

See generally Creeping Mandatory Arbitration, supra, at 1651–52 (discussing

value of class actions).

Although Texas courts have found that class action waivers may not be

unconscionable under certain circumstances, they admit the possibility that a

waiver “may rise to the level of fundamental unfairness.” AutoNation USA Corp. v.

Leroy, 105 S.W.3d 190, 200 (Tex. App. 2003). The fundamental unfairness of

class action waivers is especially prominent in the context of privacy rights, as

consumers forced into arbitration and out of class actions will be unable to achieve

the ultimate goal that animates the VPPA—the protection of consumers’ privacy.

Private rights of action, including class actions, are particularly crucial in the

context of privacy rights. Because privacy rights are very sensitive, they are

difficult to vindicate without statutory civil remedies. See Parks v. IRS, 618 F.2d

677, 685 (1980). Moreover, in the VPPA, as in the Privacy Act, the “best means”

of enforcing the statutory remedies is through private rights of action because they

are likely to increase compliance with statutory standards. The statutory liquidated

damages provided for in the VPPA are also essential to deter companies from

violating consumers’ privacy rights. Indeed, private rights of action are arguably

30

the bare minimum that can be done to protect privacy rights, and more vigorous

protection may be necessary to effectively protect individuals’ privacy.

Finally, many of the public policy concerns that weigh against mandatory

arbitration clauses in general are present in the VPPA context. The agreement

containing the arbitration clause in this case was part of a “clickwrap” online

agreement. Consumers who wished to sign up for Blockbuster’s services were

required to click a box on Blockbuster’s website that appeared next to the

following statement: “I have read and agree to the blockbuster.com (including

Blockbuster Online Rental) Terms and Conditions and certify that I am at least 13

years of age.” Appellant’s Brief at 6. However, consumers were not required to

actually read, much less understand, the terms and conditions, and could merely

click the box and continue the sign-up process. Public policy concerns regarding

the inherently nonconsensual nature of consumer arbitration agreements are

exacerbated in this context, where consumers are not even required to examine the

contents of the agreement. Moreover, as discussed, the arbitration agreement

substantively favors Blockbuster by precluding the use of class actions, a provision

which implicates serious public policy concerns. Thus, public policy concerns

weigh heavily against arbitration of VPPA claims.

31

CONCLUSION

At issue in this case is the enforcement of statutory provision that is the

cornerstone of an important federal privacy law. If that provision is removed, the

statutory scheme collapses. Amicus Curiae respectfully request this Court to grant

Appellee's motion to sustain the decision of the lower court.

Respectfully submitted, /s/

Marc Rotenberg John A. Verdi Jared Kaprove Ginger McCall Kimberly Nguyen* Matthew Phillips Electronic Privacy Information Center (EPIC) 1718 Connecticut Ave. NW Suite 200 Washington, DC 20009 (202) 483-1140

November 3, 2009

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of 7,000 words of Fed.

R. App. P. 29(d) and Fed. R. App. P. 32(B)(i). This brief contains 6,750 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This

brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been

prepared in a proportionally spaced typeface using Microsoft Office Word 2007 in

14 point Times New Roman style.

Dated: November 3, 2009

_________/s/________________ Marc Rotenberg John A. Verdi Jared Kaprove Kimberly Nguyen* Matthew Phillips Electronic Privacy Information Center (EPIC) 1718 Connecticut Ave. NW Suite 200 Washington, DC 20009 (202) 483-1140

CERTIFICATE OF SERVICE I hereby certify that on this third day of November, 2009, seven copies of

the foregoing Brief of Amicus Curiae were filed with the Clerk of the Court by

overnight delivery service, and two copies were shipped by commercial carrier for

next-day delivery upon the following:

Thomas S. Leatherbury Michael L. Raiff Frank C. Brame VINSON & ELKINS LLP Trammell Crow Center 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201 Telephone: 214-220-7792 Facsimile: 214-999-7792 J. Mark Mann THE MANN FIRM 300 West Main Street Henderson, Texas 75652 Telephone: 903-657-8540 Facsimile: 903-657-6003

Thomas M. Corea Jeremy R. Wilson THE COREA FIRM, P.L.L.C. The Republic Center 325 North St. Paul Street, Suite 4150 Dallas, Texas 75201 Telephone: 214-953-3900 Facsimile: 214-953-3901 George A. Otstott Ann Jamison OTSTOTT & JAMISON, P.C. Two Energy Square 4849 Greenville Avenue, Suite 1620 Dallas, Texas 75206 Telephone: 214-522-9999 Facsimile: 214-828-4388

Dated: November 3, 2009

_________/s/______________ Marc Rotenberg John A. Verdi Jared Kaprove Matthew Phillips Kimberly Nguyen* Electronic Privacy Information Center (EPIC) 1718 Connecticut Ave. NW Suite 200 Washington, DC 20009 (202) 483-1140